On appeal from the Division on Civil Rights, EV09HB-43181, OAL No. CRT 5188-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 2, 2007
Before Judges Skillman and Winkelstein.
On December 18, 1997, M.W. filed a complaint with the Division on Civil Rights (Division) against his employer State Shuttle/Top Ten Leasing, Inc. (appellant). He alleged that his employer violated the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, by denying him employment because of a disability, Acquired Immunodeficiency Syndrome (AIDS), and by failing to accommodate his disability. After M.W. died on March 24, 1998, his widow, L.W., pursued the claim.
The case was transferred to the Office of Administrative Law as a contested case. After holding hearings, an Administrative Law Judge (ALJ) dismissed the complaint on the grounds that the Division failed to establish a prima facie case of discrimination. The Division filed exceptions to that decision, and the Director of the Division (Director) reversed the ALJ's determination in a twenty-seven-page written decision. He concluded that the Division had established a prima facie case of discrimination, and in addition, that the record supported a finding of discrimination. The Director awarded L.W. back pay in the amount of $5460, prejudgment interest of $2047.95, $5000 in damages for emotional distress, and he imposed a $5000 penalty upon appellant for violating the LAD. In a subsequent order, the Director awarded the Division $46,499.25 in counsel fees and out-of-pocket costs.
On appeal, appellant claims that the Director's findings should be rejected because the Division failed to prove the essential elements necessary to establish discrimination.
Appellant further asserts that the damages and counsel fees awarded by the Director were excessive and unjustified.
We have carefully reviewed the record in light of the applicable law, and we conclude that the Director's decision is supported by substantial credible evidence in the record. Appellant's arguments to the contrary are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(D), (E). We add only the following.
Our scope of review of an administrative agency's decision is limited. We may only reverse the agency if its decision was arbitrary, capricious or unreasonable, or not supported by substantial evidence in the record as a whole. In re Taylor, 158 N.J. 644, 656-57 (1999). We do not substitute our judgment for that of the agency. Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587 (2001).
Appellant asserts that the ALJ was correct in concluding that the Division failed to make a prima facie case of discrimination. As the agency found, however, the ALJ relied on not only the Division's evidence, but also appellant's evidence. The agency properly points out that only a plaintiff's evidence is to be evaluated when determining whether a prima facie case has been made. Zive v. Stanley Roberts, Inc., 182 N.J. 436, 448 (2005). Thus, the ALJ misconceived the nature of a prima facie case.
We briefly address the counsel fee award. In a supplemental order dated October 30, 2006, the Director awarded the Division approximately $46,500 in counsel fees and costs. That order was executed after appellant filed its notice of appeal on October 3, 2006. The counsel fee issue should have been resolved before appellant filed its notice of appeal. Shimm v. Toys From the Attic, Inc., 375 N.J. Super. 300, 304 (App. Div. 2005); Gen. Motors Corp. v. City of Linden, 279 N.J. Super. 449, 454-56 (App. Div. 1995), rev'd on other grounds, 143 N.J. 336 (1996); Pressler, Current N.J. Court Rules, comment 2.2.2 on R. 2:2-3(a) (2008). Nevertheless, given the passage of time and the procedural posture of the case, in the interest of justice we will deem the order for counsel fees to have been timely ...